United States v. Adrian Zitlalpopoca-Hernandez , 709 F. App'x 428 ( 2017 )

FILED
NOT FOR PUBLICATION
SEP 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50167
Plaintiff-Appellee, D.C. No. 3:08-cr-04304-BEN-1
v.
MEMORANDUM*
ADRIAN ZITLALPOPOCA-
HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted August 29, 2017
Pasadena, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.
Appellant challenges his 200-month sentence for Aiding and Abetting
Persuasion or Coercion to Travel to Engage in Prostitution under 18 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
2422(a), Aiding and Abetting Harboring Aliens for Purposes of Prostitution under
8 U.S.C. § 1328, Aiding and Abetting Bringing Illegal Aliens into the United
States for Financial Gain under 8 U.S.C. § 1324(a)(2)(B)(ii), and Aiding and
Abetting Harboring Illegal Aliens under 8 U.S.C. § 1324(a)(1)(A)(iii). We have
jurisdiction under 28 U.S.C. § 1291. We reverse and remand for resentencing.
Sentencing decisions are reviewed for abuse of discretion. United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). When selecting a sentence, the
sentencing court must determine the applicable Guidelines range, consider the
factors in 18 U.S.C. § 3553(a), and explain its reasoning in detail sufficient to
permit meaningful appellate review. Id. at 991-92. An explanation is sufficient if it
“communicates that the parties’ arguments have been heard, and that a reasoned
decision has been made.” Id. at 992. For outside-Guidelines sentences, the
sentencing court must consider the extent of departure, and the persuasiveness of
its reasoning must be proportionate to the variance. Id. at 991-92. We set aside a
sentence only if it is procedurally erroneous or substantively unreasonable. Id. at
993. Procedural errors include mistakes in calculating the Guidelines range and
failure to adequately explain the selected sentence. Id.
Appellant first argues that the district court erred in calculating the
Guidelines range for the period of supervised release following his prison sentence.
2
Because this claim was not preserved below, we review for plain error. United
States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). Because
appellant will almost certainly be removed following his release, and because his
period of supervised release will be waived on his removal, the term of supervised
release will not affect his substantial rights. The plain error standard therefore has
not been met, and we affirm that part of the sentence.
Appellant also argues that the district court’s explanation for its sentence
was procedurally deficient. The court erred by failing to adequately address the
arguments raised in appellant’s sentencing memorandum. “[W]hen a party raises a
specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support
of a requested sentence, then the judge should normally explain why he accepts or
rejects the party's position.” Carty, 520 F.3d at 992-93. “[A] mere statement that
the judge had read the papers is [not], by itself and automatically, sufficient as an
explanation of the judge's treatment of the § 3553(a) factors.” United States v.
Trujillo, 713 F.3d 1003, 1010 (9th Cir. 2013). The district court failed to
adequately address appellant’s argument, “tethered” to 18 U.S.C. § 3553(a)(6), that
similarly situated defendants were given lighter sentences. We thus remand for the
court to consider that argument and explain why it accepts or rejects the argument.
3
Finally, appellant argues that his sentence was substantively unreasonable. A
sentence is not substantively unreasonable where “the record as a whole reflects
rational and meaningful consideration of the factors enumerated in 18 U.S.C. §
3553(a).” United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir. 2011)
(internal quotations omitted). The record here reflects meaningful consideration of
the 18 U.S.C. § 3553(a) factors, spanning three sentencing proceedings. The
sentence was not substantively unreasonable.
Appellant has asked that his case be reassigned on remand. We reassign only
in unusual circumstances, when the original judge would have substantial difficulty
reevaluating its prior, erroneous views or findings, or when prudent to preserve the
appearance of justice. Earp v. Cullen, 623 F.3d 1065, 1071 (9th Cir. 2010). While
we acknowledge that this will be the third resentencing in this case, we do not
believe that the standard for reassignment has been met, especially given that the
sentencing judge has demonstrated a willingness to reevaluate and revise the
sentence on remand. We thus remand to the original judge.
VACATED AND REMANDED.
4
FILED
USA v Zitlalpopoca-Hernandez 16-50167 SEP 26 2017
MOLLY C. DWYER, CLERK
Freudenthal, Chief District Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I concur with the majority’s finding that the district court judge’s sentencing
decision was not procedurally sound, but I dissent from the majority’s finding that the
sentence is substantively reasonable. I also dissent from the decision not to reassign the
case to a new district court judge for sentencing.
With the conclusion that the district court judge’s sentencing decision is not
procedurally sound, I would not reach the issue of whether the sentence is substantively
reasonable. United States v. Ellis, 641 F.3d 411, 422 (9th Cir. 2011) (citing Gall v.
United States, 552 U.S. 38, 51 (2007) (“[i]n the absence of a ‘significant procedural
error,’ this court reviews a sentence for substantive reasonableness”).
Additionally, I would find the standard for reassignment has been met.
“Reassignment absent a showing of the judge’s personal bias is appropriate if the panel
reasonably expects that the original judge would have ‘substantial difficulty in putting out
of his or her mind previously-expressed views or findings determined to be erroneous or
based on evidence that must be rejected,’ . . . .” United States v. Musa, 18 F. App'x 549,
550 (9th Cir. 2001)(citing, United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th
Cir.1986)).
This matter has been before the same district court judge on three occasions. The
district court judge’s statements from the April 18, 2016 sentencing demonstrate the
substantial difficulty he will have in reevaluating prior erroneous views or findings. The
judge characterized Zitlalpopoca-Hernandez as a violent, despicable predator engaged in
egregious conduct (“physical scars heal, but the mental and emotional torture was even
more disturbing”). However the record contains no evidence of any physical violence
against the two women related to prostitution, and no evidence of conduct amounting to
mental and emotional torture. The judge expressed his firmly held view that the two
women suffered psychological damage, again with no evidence in the record of any
psychological damage. These erroneous views about violence and psychological damage
resulted in the district court judge’s firmly held view that Zitlalpopoca-Hernandez’s
conduct eliminated the women’s ability to consent, with no evidence that the two women
could not and did not make choices of their own, including choices to leave and then
return. Finally, while the district court judge revised the sentence on remand, he did so
after remarking that, “And I’m down to 200 months. And you know, I think there comes
a point where we have to say, this behavior cannot be tolerated.” The district court judge
only reluctantly reduced the sentence after saying, “I must be getting softer as I age” and
“only because of some of [Appellant’s] rehabilitation while he’s in prison.”
I believe this case is an unusual circumstance when the original district court judge
would have substantial difficulty reevaluating his prior, erroneous views or findings.
Earp v. Cullen, 623 F.3d 1065, 1072 (9th Cir. 2010).